UPDATES ON THE CIVIL ACTION
BY THE TENNESSEE DIVISION OF THE
UNITED DAUGHTERS OF THE CONFEDERACY
versus
VANDERBILT UNIVERSITY

"Confederate Memorial Hall"

UPDATE - Court of Appeals Soundly Reverses Trial Court

May 3, 2005 -- The Tennessee Court of Appeals has ruled in a unanimous decision entered by
the Court that Chancellor Gee and through him Vanderbilt University had no contractual or other
right to unilaterally declare that it was disregarding the gift made by the United Daughters of the
Confederacy during the Depression that was designated for the construction of a dormitory in the
memory and honor of the men who had faught and died for the South during the Civil War.

The Court's Opinion, written
by Judge Koch, is extensive and blistering. The Court noted that Vanderbilt had asserted five
arguments to justify its actions - each of these were then serially shot down by Judge Koch. Note: A concurring opinion by Judge Cain is equally worth consideration. The following quotes from the Koch opinion set out the basics of the dispute and the misplaced factual and legal theories of Chancellor Gee and Vanderbilt University on this matter:

“It [Vanderbilt] advanced essentially five justifications for modifying its
agreement with the Tennessee U.D.C. First, Vanderbilt claimed that none of the
three contracts at issue specified precisely how the name “Confederate Memorial
Hall” would be placed on the building and argued that the plaque installed by the
entrance in 1989 constituted substantial compliance with any naming requirement
in the three contracts. Second, Vanderbilt asserted that because the dormitory had
not been used to provide free or reduced-rent housing to women descendants of
Confederate soldiers since approximately 1983, the statute of limitations and the
doctrine of laches barred the Tennessee U.D.C.’s belated attempts to enforce their
rights under the contracts. Third, Vanderbilt argued that the Tennessee U.D.C.
had received full consideration for its $50,000 donation because of the many
women who had been allowed to live in the dormitory rent-free over the years and
because the name “Confederate Memorial Hall” had remained on the building for
almost seventy years. Fourth, Vanderbilt argued that principles of academic
freedom prevented the court from requiring the maintenance of the name
“Confederate” on the building. Fifth, Vanderbilt argued that maintaining the
name “Confederate Memorial Hall” on the building might constitute a violation of
state and federal anti-discrimination laws.”

On Vanderbilt’s first argument, Judge Koch explains historically and legally why this institution
of higher education (which has one of this State’s leading law schools) grossly misconstrues the
law. Judge Koch, referencing the extensive 75 year history of the dormitory and the relationship,
concludes that the money raised by the UDC and given long ago to Peabody was a gift with
conditions:

“Taking all three contracts together, the gift from the Tennessee U.D.C. to
Peabody College was subject to three specific conditions. First, Peabody College
was required to use the gift to construct a dormitory on its campus conforming to
plans and specifications approved by the Tennessee U.D.C. Second, Peabody
College was required to allow women descendants of Confederate soldiers
nominated by the Tennessee U.D.C. and accepted by Peabody College to live on
the first and second floors of the dormitory without paying rent and paying all
other dormitory expenses on an estimated cost basis. Third, Peabody College was
required to place on the dormitory an inscription naming it “Confederate
Memorial.” * * * Given the nature of the project and the content of the conditions,
we conclude that these conditions were not meant to bind Peabody College
forever but instead were to be limited to the life of the building itself. Thus, as
long as the building stands, these three conditions apply to the gift.

Vanderbilt’s second argument, delay, was dismissed as “fatuous” by the Court with nothing more
than a footnote:

Vanderbilt’s arguments based on laches and the statute of limitations are without
merit, at least with regard to the renaming of Confederate Memorial Hall. If the
Tennessee U.D.C. were seeking to force Vanderbilt to honor the part of the
agreement allowing women descendants of Confederate soldiers to live in the
dormitory rent-free, Vanderbilt might well have a valid defense based on laches or
the statute of limitations. Vanderbilt ceased complying with that portion of the
agreement over twenty years ago, the Tennessee U.D.C. knew of Vanderbilt’s
noncompliance, and the Tennessee U.D.C. did not file suit to enforce the
agreement. The agreement regarding the name of the dormitory is another matter.
Vanderbilt did not publicly announce its intention to rename Confederate
Memorial Hall until September 2002, and the Tennessee U.D.C. filed its lawsuit
seeking to enforce the portion of the agreement pertaining to the name of the
dormitory well within any applicable statute of limitations. It would be fatuous
to assert that the Tennessee U.D.C.’s delay of less than two months in filing
the lawsuit was “unreasonable” or that Vanderbilt was somehow prejudiced
in the interval.

Vanderbilt’s third argument was that the UDC had received “full consideration” for its $50,000
Depression era gift and that this excused Vanderbilt from keeping the name on the historical
structure. Judge Koch categorized these arguments as unreasonable and without merit:

Vanderbilt continued to comply fully with this condition from its 1979
merger with Peabody College until 2002 when it announced its plans to remove
the word “Confederate” from the building’s pediment. It is doubtful that a party
such as Vanderbilt that has wilfully changed course after over twenty years of
compliance with the literal terms of an agreement could ever rely on the doctrine
of substantial performance. * * * Even if it could, no reasonable fact-finder
could conclude that replacing a name written in stone in large letters on the
pediment of a building with a plaque by the entrance constitutes substantial
performance of a requirement to do the former.

Vanderbilt’s argument that it should be excused from complying with the
inscription condition contained in the 1933 contract because the Tennessee
U.D.C. has already received enough value for its original contribution to the
construction of the building is likewise without merit.* * * By entering into
the 1913, 1927, and 1933 contracts, Peabody College necessarily agreed that the
value of the gift it was receiving was worth the value of full performance of the
conditions of the gift. * * * In short, Vanderbilt’s unilateral assessment that
Peabody College gave away too much in the 1913, 1927, and 1933 agreements
does not constitute a legal defense that would excuse Vanderbilt from
complying with the conditions of the original gift.

In its fourth argument, Vanderbilt claims that the concept of “academic freedom” empowers it to
disregard any such contract at any time. Judge Koch instructs Vanderbilt on the law - once
again:

Vanderbilt’s assertion that principles of academic freedom allow it to keep
the gift from the Tennessee U.D.C. while ignoring the conditions attached to that
gift is equally unavailing. As Vanderbilt correctly notes in its brief on appeal,
the United States Supreme Court has long been solicitous of the independence of
private colleges from government control. * * * However, the source of the
obligation at issue in this case is not the government but Vanderbilt itself.
The original obligation to place the inscription on Confederate Memorial Hall is
contained in a private gift agreement voluntarily entered into between Peabody
College and the Tennessee U.D.C. Vanderbilt’s legal obligation to comply
with the conditions of that gift agreement arises not from any action on the
part of the government but from Vanderbilt’s own decision to enter into a
merger agreement with Peabody College in 1979 in which it agreed to
succeed to Peabody College’s legal obligations.

Moreover, we fail to see how the adoption of a rule allowing universities
to avoid their contractual and other voluntarily assumed legal obligations
whenever, in the university’s opinion, those obligations have begun to impede
their academic mission would advance principles of academic freedom. To the
contrary, allowing Vanderbilt and other academic institutions to jettison their
contractual and other legal obligations so casually would seriously impair their
ability to raise money in the future by entering into gift agreements such as the
ones at issue here.

Vanderbilt’s fifth argument was that requiring the name “Confederate” to remain on the building
would constitute a violation of various anti-discrimination laws. Judge Koch dismissed that
argument with only a footnote:

Vanderbilt, however, failed to cite any specific federal or state statute or
regulation to support this argument or to provide any other legal precedent
supporting its assertion that the courts may compel a private property owner to
remove an inscription from an existing building or structure simply because the
inscription might be a racial affront to some of the persons entering and leaving
the building or to other passers by. Vanderbilt did not renew this particular
argument in its brief on appeal or in its oral argument. Accordingly, we
deem it to be waived.

After an extensive analysis of the history of the relationship, the contracts at issue and the
conduct of Vanderbilt, the Court of Appeals fully reversed Chancellor Kilcrease and entered
judgment in favor of the UDC. The case is remanded for damages hearings.

History of the Case

A civil action was filed by the Tennessee Division of the United
Daughters of the Confederacy versus Vanderbilt University to enforce contractual
agreements entered into by the UDC with Peabody College, which is the predecessor of
Vanderbilt University, whereby the UDC agreed to provide $50,000 to Peabody College for
the purpose of building a memorial building that would be used as a dormitory. This
dormitory was built in 1935 as a rent-free residence for women students of Confederate
ancestry, with financing by the United Daughters of the Confederacy and Peabody College.
The dormitory was named Confederate Memorial Hall.

The style of the case is Tennessee Division of the United
Daughters of the Confederacy v. Vanderbilt University The UDC is the
"plaintiff" in the action. Vanderbilt University is the
"defendant."